Citation Nr: 22015462 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 18-41 621 DATE: March 17, 2022 REMANDED Entitlement to service connection of diabetes mellitus, type II, is remanded. Entitlement to service connection of hypertension is remanded. Entitlement to service connection of erectile dysfunction is remanded. Entitlement to service connection of diabetic retinopathy is remanded. Entitlement to service connection of chloracne is remanded. Entitlement to service connection of an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1962 to September 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran presented oral testimony in support of his appeal at a Board hearing conducted by a Veterans Law Judge. A transcript of the February 2021 hearing is associated with the file. As a matter of procedural background, this appeal previously came before the Board in March 2021, at which point it remanded the six issues addressed herein for further development. On January 4, 2022, the Veteran was notified that the VLJ who conducted the February 2021 Board hearing was no longer employed at the Board, and was offered the opportunity to request a new hearing. The Veteran did not respond within the 30 days to request such a hearing, and to date has not asserted the desire for an additional hearing. As such, the Board is satisfied that the Veteran does not wish for a new hearing in associated with his claims, at this time. 1. Entitlement to service connection of diabetes mellitus, type II, is remanded. 2. Entitlement to service connection of hypertension is remanded. 3. Entitlement to service connection of erectile dysfunction is remanded. 4. Entitlement to service connection of diabetic retinopathy is remanded. 5. Entitlement to service connection of chloracne is remanded. 6. Entitlement to service connection of an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Inasmuch as the Board regrets any additional delay in the adjudication of the issues on appeal, an additional remand is necessary to ensure proper development of the claims prior to the Board's final adjudication. In its March 2021 remand, the Board ordered that VA obtain any outstanding VA treatment records, and also request that the Veteran identify any relevant private treatment records, and if adequately identified, obtain those records on behalf of the Veteran. In May 2021, additional VA treatment records were identified. In June 2021, the RO readjudicated the issues via a supplemental statement of the case (SSOC). However, on July 2, 2021, the Veteran submitted several copies of VA From 21-4142 (Authorization for Release of Information), identifying relevant private treatment records from at least three separate physicians/facilities. On July 8, 2021, the RO notified the Veteran that it would attempt to obtain those records on his behalf, but that it was the ultimate responsibility of the Veteran to ensure VA received them. In late July 2021, VA received records from one of the identified providers. On July 22, 2021, the RO notified the Veteran that his claim was being returned to the Board. Four days later, it notified that Veteran that it still had not received records from at least two if the identified providers/facilities. The following day, additional records from at least one of the remaining providers were submitted to VA directly from the provider. To date, the RO has not readjudicated the appeals in this case in light of this new evidence. Relevant legislation provides that "[i]f, either at the time or after the agency of original jurisdiction receives a substantive appeal, the claimant or the claimant's representative, if any, submits evidence to either the agency of original jurisdiction or the Board of Veterans' Appeals for consideration in connection with the issue or issues with which disagreement has been expressed, such evidence shall be subject to initial review by the Board unless the claimant or the claimant's representative, as the case may be, requests in writing that the agency of original jurisdiction initially review such evidence." See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165, Sec. 501 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests agency of original jurisdiction (AOJ) consideration). In short, if new evidence is submitted by the Veteran or his representative following the final adjudication of a claim by the RO, then it is not subject to readjudication by the RO prior to Board consideration absent specific request. However, this waiver of initial consideration does not extent to evidence obtained or created by VA. If VA either creates or obtains evidence, it must first be considered by the RO prior to Board consideration of that evidence. The question in this case hinges on whether, in submitting the three relevant copies of VA Form 21-4142, the Veteran submitted these records, in which case they are subject to the automatic waiver of RO consideration; or in the alternative, they were created/obtained by VA, and thus not subject the automatic waiver and require additional adjudication by the RO prior to Board consideration of the substance of the appeal. VA's duty to assist requires it to make reasonable efforts to secure relevant records not in the custody of a Federal entity, including records from State or local governments, any other non-Federal governmental source, private health care providers, and current or former employers. 38 C.F.R. § 3.159(c)(1). In essence, while ultimately the responsibility of the claimant to ensure all records are submitted in support of a claim, if the claimant adequately identifies records which are potentially applicable to his or her appeal, VA has a statutory duty to make reasonable efforts to obtain those records. Because the records, in this case, were associated with the claims file directly from the medical provider to VA, pursuant to the statutory duty to assist, the Board is satisfied that the records were obtained by VA, and not submitted by the Veteran. As such, the Board finds that they do not qualify for the automatic waiver of initial consideration by the RO. As such, the Board will remand these claims so that the RO may issue a new SSOC which considers all evidence obtained by VA since the time of the prior SSOC. The matters are REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his appeals. 2. Thereafter, the AOJ must complete any development which reasonably flows from the medical evidence added to the record, to include providing the Veteran appropriate VA examinations and/or obtaining medical nexus opinions. 3. Thereafter, the AOJ must readjudicate the issues on appeal in light of all evidence obtained by VA on the Veteran's behalf following the most recent SSOC. If any benefit is not granted to the fullest extent, the Veteran and his representative must br provided with a copy of the readjudication and afforded an adequate opportunity to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Pryce, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.